TOP 10: Gay divorcees

By John Wright

Dallas Judge Tena Callahan rules that a gay male couple who had filed for divorce would get their divorce — AND that the Texas marriage ban is unconstitutional.



HISTORIC CASE | Judge Tena Callahan ruled in the first same-sex divorce case filed in Texas, granting the divorce and declaring the state’s ban on gay marriage unconstitutional. (John Wright/Dallas Voice)

The Gay Divorce: While more progressive states grappled with the issue of same-sex marriage in 2009, conservative Texas took center stage in the debate over gay divorce. On Jan. 21, Dallas Voice broke the news that a Dallas man had filed what is believed to be Texas’ first same-sex divorce petition.

The man, who’s asked to be identified only as J.B., married his husband, H.B., in 2006 when they lived in Massachusetts, before they moved to Texas. But the couple can’t dissolve their marriage in Massachusetts without moving back there because the state has a residency requirement for divorce. 

A day after the petition was filed, Republican Attorney General Greg Abbott announced he would intervene in the case and oppose the divorce. Abbott argued that because Texas doesn’t recognize same-sex marriage, the state cannot grant a gay divorce.

"To prevent other states from imposing their values on this state, Texas voters overwhelmingly approved a constitutional amendment specifically defining marriage as a union of one man and one woman," Abbott said in a statement at the time. "These two men are seeking a court ruling that challenges the Texas Constitution, so the Office of the Attorney General will intervene to defend Texas law — and the will of Texas voters."

Meanwhile, some LGBT advocates said they feared the same-sex divorce case could ultimately hurt gay rights. They said if the case makes it to the Texas Supreme Court, it will give the court’s ultraconservative justices their first chance to interpret the 2005 constitutional amendment — potentially jeopardizing things like domestic partner benefits offered by the city of Dallas.

"I just think that from the perspective of advancing the cause, this would not be my choice of cases," said Ken Upton, senior staff attorney in Lambda Legal’s Dallas office.

But J.B.’s attorney, Peter Schulte, argued that the LGBT community has nothing to lose. "We’re at ground zero," he said.  At the same time, both Schulte and his client insisted that the divorce isn’t a test case designed to further LGBT equality.

More than eight months later, fervor about the case had long since subsided. 

Then, on Oct. 1, state district Judge Tena Callahan issued her ruling that not only rejected Abbott’s arguments and ruled that she had jurisdiction to grant the divorce — she went on to say that the state’s constitutional amendment banning same-sex marriage is, well, unconstitutional.

Suddenly, just three months after the Rainbow Lounge raid, Texas was back in the national gay news spotlight.  And this time around, LGBT advocates seemed far less concerned about the potential impact of an appellate court ruling.

They praised Callahan and hailed her ruling as the "new Buchmeyer decision," referring to a landmark 1982 case that initially threw out the state’s sodomy law.

Abbott issued a statement vowing to appeal, which he has done. Also issuing a statement was Republican Gov. Rick Perry. Even Agricultural Commissioner Todd Staples, whose job has a lot more to do with crops than LGBT issues, slammed Callahan on his Web site. Callahan has remained silent about the case except for an appearance at a Stonewall Democrats meeting during which she told the crowd that she was just doing her job and trying to do the right thing.

The case now proceeds to the 5th District Court of Appeals, which, like the state Supreme Court, is made up mostly of conservative Republicans. But Schulte said he thinks that’s why the case could be so significant.  

This article appeared in the Dallas Voice print edition January 1, 2010.

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